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TMI Blog2017 (1) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... - SHRI R.P. TOLANI, JUDICIAL MEMBER For The Assessee : Shri Gyan Pipara, AR For The Revenue : Shri Pravin Kumar, Sr DR ORDER This appeal by the assessee is directed against the order of the Learned Commissioner of Income-Tax (Appeals)-6, Ahmedabad dated 21.02.2013 for Assessment Year 1994-95. 2. The concise grounds raised are to the effect that the ld. CIT(A) erred in law and on facts in (i) Upholding the reassessing proceedings u/s 147/148 of the Incometax Act; (ii) Confirming the addition of ₹ 4,82,006/- being the unexplained investment in shares; (iii) Confirming the addition of ₹ 9,33,091/- as the interest paid in cash; (iv) Confirming addition of ₹ 1,28,000/- for investment in house property. (v) Confirming addition of ₹ 2,50,000/- being unexplained advances to S.S. Nagri. (vi) Confirming the additions of ₹ 65,000/- and ₹ 6,750/- towards unexplained investment in shares. (vii) Confirming the addition of ₹ 4,044/- being the unexplained donation. (viii) Confirming the addition of ₹ 2,50,000/- being the unexplained investment in the shares of Reliance Industrial Ltd. (ix) Confirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.12.2000 on the basis of following observations: In this case several opportunities of hearing were given to the appellant time and again and this time around neither there has been any compliance nor an letter for adjournment has been received. In this view of the matter the appeal is decided on merits. 6. Aggrieved, the assessee filed an appeal before the ITAT, Ahmedabad Bench vide ITA No.475/Ahd/2001. During the course of hearing before the ITAT, an additional ground of appeal was filed as under: The impugned order of assessment is bad in law as the same is barred by limitation and therefore, requires to be cancelled. As vide submissions dated 26/02/2000, if has been submitted before the Assessing Officer that the notice u/s.148 dated 10/03/1998 is bad in law as at the time of issue of this notice u/s.148, the earlier assessment in response to notice u/s.148 dated 27/07/1995 was undergoing and thus, there was time available to the Assessing Officer for completion of the assessment by 31/03/1998 and thus, the issue of notice u/s.148 dated 10/03/1998 is bad in law as on this date the original assessment has not come to an end. The present assessment being based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inadvertence. Appellant had not filed any return of income in response to first notice u/s 148. As held by the Supreme Court in the decision referred to above, in the absence of any express provision on the statute debarring the issue of second notice and in the absence of any return of income filed by the appellant pursuant to the first notice u/s 148, it cannot be said that the issue of the second notice u/s 148 was in contravention of the income-tax Act. Admittedly impugned order u/s 143(3) r.w.s 147 passed within the time limit taking into reckoning the date of the second notice of Sec. 148. Therefore I am of the considered view that the action of the A.O was in accordance with law. 4.7 During the course of hearing, learned A.R. relied on the case laws cited at 258 ITR 183 (Bom), 133 Taxman 71 (Mum), 80 ITD 591 (Chd.) 87 ITD 77 (Agra) (SMC), 24 SOT (Delhi) (URO) and 107 ITD 357 (Chennai). Having given my careful consideration to the ratios laid down in the said decisions, I do not find that any of these case laws is applicable to the facts of the instant case. 4.8 Accordingly, the additional ground of appeal filed by the appellant for the first time before the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year, the same was valid under the Act. He also stated that the assessee had been non-cooperative throughout the proceedings. 10. I have heard the rival submissions, perused the material available on record and gone through the orders of the lower authorities. As a matter of fact the assessment proceedings pursuant to the first notice u/s.148 of the Act did not culminate into a valid order prior to issuance of the second notice under the same section i.e. u/s.148 of the Act. The Hon ble High Court of Gujarat in the case of Aditya Medisales Ltd. vs. DCIT, Circle 1(1) (2016) 73 Taxmann.com 197 (Guj.) has dealt with identical question of law. The relevant findings of the Hon ble High Court after discussing the ratio laid down by the Hon ble Supreme court in various decisions are reproduced hereunder: 1. It can thus be seen that majority of the High Courts of the country have proceeded on the basis that when the assessment proceedings are pending pursuant to the return filed by the assessee, there would be no authority in the Assessing Officer to issue notice under section 148 of the Act. Expressed in different thoughts and language, the central concept being that when a retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer. In either case within the contours of the provisions for assessment, the assessment of the income of the assessee at the hands of the Revenue is at large. 11. In the entirety of facts and circumstances, it is quite clear that the position of law is settled proposition that when the reassessment proceedings are pending based on a valid 148 notice, the subsequent proceedings under section 148 cannot be initiated unless earlier proceedings are brought to a logical end. In the present appeal, it is an undisputed fact that the first notice dated 27.07.1995 issued under the same section remains un-disposed of. It is also an undisputed fact that the second notice under section 148 was issued on the ground that income had escaped assessment because of the invalid/non-est return filed by the assessee. The Assessing Officer in the remand report has confirmed all the dates as mentioned in para no.13 on page 19 to 22 of the order of CIT(A) and also confirmed that no assessment was made pursuance to first notice u/s.148 dated 27.07.1995. In view of these facts and circumstances, I am inclined to quash the second notice under section 148 dated 10/03/1998 as invalid. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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